dissenting.
I respectfully dissent from all three divisions of the majority opinion. In Division 1, the majority usurps the function of the legislature by abruptly and unnecessarily reinterpreting our kidnapping statute. Based on this improper reinterpretation of well settled law, the majority erroneously concludes in Division 2 that there is insufficient evidence of asportation to support Garza’s conviction for kidnapping Ms. Mendoza. In Division 3, the majority abandons its judicial role to take on the role of an advocate by ruling on an issue not raised by the Appellant, and also erroneously concludes that there is insufficient evidence of asportation to support Garza’s conviction for kidnapping nine-year-old J. M.
1. Over half a century ago, the Georgia General Assembly amended the kidnapping statute, removing any precise distance requirement from the asportation element of the crime. Ga. L. 1953, Nov.-Dee. Sess., pp. 99-100, § 1. In 1968, the legislature again amended the statute, removing “force” as an element of kidnapping. Ga. L. 1968, pp. 1249, 1282; Molnar, Ga. Criminal Law (6th ed.), Kidnapping and Related Offenses, p. 766, § 42-1. That 1968 version of the statute is, in all material respects, identical to the current codification of the statute in defining the crime of kidnapping as being committed when a person “abducts or steals away any person without lawful authority or warrant and holds such person against his will.” Ga. L. 1968, pp. 1249,1282, § 26-1311 (a); OCGA § 16-5-40 (a) . Since then, the appellate courts of this state have repeatedly held that the kidnapping statute’s element of asportation is satisfied by any movement of the victim, however slight, and that there is no minimum requirement as to distance. Lyons v. State, 282 Ga. 588, 591 (1) (652 SE2d 525) (2007); Griffin v. State, 282 Ga. 215, 219 (1) (b) (647 SE2d 36) (2007); Lenon v. State, 290 Ga. App. 626, 628 (1) (660 SE2d 16) (2008); Chemielowiec v. State, 250 Ga. App. 66 (1) (550 SE2d 120) (2001); Estes v. State, 234 Ga. App. 150, 151 (505 SE2d 840) (1998); Chambley v. State, 163 Ga. App. 502, 503-504 (1) (295 SE2d 166) (1982); Brown v. State, 132 Ga. App. 399, 401-402 (2) (208 SE2d 183) (1974).
During the more than three decades that the Georgia courts have interpreted the kidnapping statute as requiring only slight movement, the General Assembly has amended the statute several times, but never in order to change this clearly accepted meaning of asportation. Ga. L. 1982, pp. 970-971, § 1; Ga. L. 1994, pp. 1959, 1962-1963, § 4; Ga. L. 2006, pp. 379, 385, § 5. Indeed, the General Assembly has even rejected a suggestion from this Court that it enact *706such an amendment. Over a quarter century ago, this Court, in an opinion affirming a kidnapping conviction where the victim was forced to walk 25 feet at gunpoint, expressed its belief that the General Assembly should enact specific legislation amending the Georgia Code “to eliminate the hair-splitting decisions as to what is sufficient asportation. . . Haynes v. State, 249 Ga. 119, 120 (1) (288 SE2d 185) (1982). However, the General Assembly clearly disagreed with that suggestion, as evidenced by its continuing refusal to enact any such amendment to the kidnapping statute. Nevertheless, the majority now disregards the General Assembly’s implicit legislative approval of the well established interpretation of the kidnapping statute and takes it upon itself to do what the General Assembly has chosen not to do, by changing the accepted meaning of the statute.
“Where a statute has, by a long series of decisions, received a judicial construction in which the General Assembly has acquiesced and thereby given its implicit legislative approval, the courts should not disturb that settled construction. (Cits.) ‘(E)ven those who regard “stare decisis” with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.’ (Cit.) A reinterpretation of a statute after the General Assembly’s implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function.” [Cit.]
RadioShack Corp. v. Cascade Crossing II, 282 Ga. 841, 843 (653 SE2d 680) (2007).
This principle is particularly true where, as here, the General Assembly has amended the statute, but none of the amendments have altered an existing judicial interpretation of the statute. Tiis-man v. Linda Martin Homes Corp., 281 Ga. 137, 139 (1) (637 SE2d 14) (2006). Moreover, as recently recognized by the Supreme Court of a sister jurisdiction, even a prior statutory interpretation that is incorrect should still be applied if the legislature amends the statute without changing that interpretation.
We . . . hold that — in cases where this Court concludes a statute was incorrectly interpreted in a previous case — we will nevertheless continue to apply the previous interpretation, pursuant to the doctrine of stare decisis, upon finding the Legislature amended or reenacted the statute without correcting the prior interpretation. In our view, such action on the part of the Legislature amounts to incorporation of *707our previous interpretation into the reenacted or amended statute. The Legislature is, of course, free to preclude our incorrect interpretation by specific provision, failing which, we must conclude that the legislative silence amounts to acquiescence. Stated another way, the incorrect interpretation becomes a correct interpretation because of the Legislature’s tacit adoption of the prior interpretation into the amended or reenacted statute.
Caves v. Yarbrough, 991 S2d 142, 153-154 (II) (Miss. 2008).
In the instant case, the majority’s reinterpretation of OCGA § 16-5-40 (a), accomplished through its refusal to adhere to the General Assembly’s tacit adoption of the long line of cases holding that slight movement is sufficient and its imposition of a new four-part test for asportation, constitutes a judicial usurpation of the legislative function. If the kidnapping statute is to be so revised to include a new four-part test, the General Assembly, rather than this Court, must take that action. See Etkind v. Suarez, 271 Ga. 352, 358 (5) (519 SE2d 210) (1999) (consistent interpretation of statute is binding law and will be followed unless statute has been changed by legislative action).
Not only does the majority improperly take on the legislative function, but its reasons for doing so are unfounded. The majority first claims that the well settled construction of the kidnapping statute “implicates the principle of substantive double jeopardy, which ‘prevent(s) the sentencing court from prescribing greater punishment than the legislature intended.’ [Cits.]” (Maj. Op. p. 700.) However, there is nothing in the accepted interpretation of the kidnapping statute that would allow a sentencing court to prescribe a greater punishment than the legislature intended. On the contrary, given the legislature’s decades-long acquiescence in that interpretation, along with the clear legislative rejection of this Court’s prior suggestion that the Code be amended, the only logical conclusion is that the longstanding construction of the kidnapping statute accomplishes precisely what the legislature intended. The statute plainly sets forth punishments for kidnapping and, of course, such punishments cannot be imposed by a court until all the elements of kidnapping, including asportation, have been proved beyond a reasonable doubt. OCGA § 16-5-40 (b) & (c). Nothing in the well settled interpretation of the statute contravenes that legislative intent.
The majority next raises a vagueness challenge, stating that it is “concerned that the plain language of the kidnapping statute may fail to provide fair warning that forcing the victims to move, however slightly, within the situs of the crime would justify prosecution for kidnapping.” (Maj. Op. p. 700.) However, “ ‘[t]o withstand a vague*708ness challenge, “all that is required is that the language ‘convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” (Cit.)’ ” Randolph v. State, 269 Ga. 147, 150 (2) (496 SE2d 258) (1998). Because the majority’s vagueness concern here does not involve First Amendment freedoms, we must limit our decision to application of the statute to Appellant Garza’s conduct in this case. Thelen v. State, 272 Ga. 81 (526 SE2d 60) (2000).
Garza’s conduct included tricking Ms. Mendoza into letting him into her home, locking the door, drawing a gun, placing it against her head, threatening to shoot her, hitting her head with the gun and thereby causing her to fall to the floor and her head to bleed, binding the prone victim’s wrists with electrician’s tape that he had brought with him, tying her ankles with a torn sheet, forcing her up, moving her to a chair, gagging her with a baby diaper, and ordering her not to move from the chair. Garza then removed the bulbs from all the lights in the house, removed the knives from the kitchen and disabled the telephone. Throughout the ordeal, he continued to threaten Ms. Mendoza with the gun, threatened to shock her with an electrical cord, made threats about shooting her three young children who were also in the residence, and repeatedly placed the gun against her baby’s head. After the victim had been held in the chair for approximately two hours, Garza allowed her to move to a couch, where he placed a noose tied to a baseball bat around her neck. At four o’clock in the morning, nearly six hours after Garza had first entered the home, Ms. Mendoza was able to escape through a window with one of her children when Garza fell asleep.
The police subsequently came to the scene and were able to remove one of the children from the house. Garza, however, continued to hold J. M. hostage for several more hours. During that time, while still holding his gun, Garza grabbed J. M.’s shirt and forced the boy to move from one room to another. He also forced J. M. to walk down a hallway and back to a bedroom on more than one occasion.
“To satisfy due process considerations, criminal [statutes] must place a person of ordinary intelligence on notice that his contemplated conduct is illegal. [Cit.]” Alexander v. State, 279 Ga. 683, 686 (3) (620 SE2d 792) (2005). Because a person of ordinary intelligence would surely know that Garza’s conduct was an illegal abduction and holding of the victims against their wills, the statute satisfies due process considerations.
Next, the majority notes that “ ‘the great majority of jurisdictions have accepted the view that kidnapping should not be recognized as a separate offense whenever the asportation relied upon to establish the kidnapping is merely incidental to another offense.’ *709[Cit.]” (Maj. Op. p. 701.) Claiming that Georgia law is not consistent with that of many other jurisdictions, the majority goes on to say that “[accordingly, we find it necessary to adopt a more cogent standard for determining the sufficiency of evidence of asportation[,]” and the way to do so is by adopting the four-part test “articulated in Govt, of Virgin Islands v. Berry, 604 F2d 221 (3rd Cir. 1979).” (Maj. Op. pp. 701-702.) According to the majority, by adopting this test it “join[s] in the ‘modern approach.’ ” (Maj. Op. p. 704.)
Contrary to the majority’s rationale, the Berry test cannot fairly be characterized as “the modern approach” since it has only been used in a handful of jurisdictions. Indeed, a federal circuit court recently noted that “ ‘(t)he Berry test has not been widely adopted by other Circuits . . . .’ [Cit.]” United States v. Zuni, 273 Fed. Appx. 733, 742 (I), fn. 5 (10th Cir. 2008). Moreover, as noted above, the majority opinion recognizes that “the great majority of jurisdictions” accepts the view that movement which is merely incidental to another crime is not sufficient asportation. Prior to today’s decision, Georgia already was part of this “great majority.” As previously pronounced by this Court,
where the movement involved is minimal, and the alleged kidnapping occurs in furtherance of some other criminal enterprise, in order to constitute “asportation” the movement must be more than a mere positional change of the victim incidental to the other criminal act; it must be movement, even if a positional change, designed to better carry out the criminal activity. [Cits.]
Lyons v. State, supra. Because Georgia already is part of the “great majority” of jurisdictions which hold that minimal movement merely incidental to another crime is not sufficient asportation, the majority’s belief that it needs to legislate a new four-part test in order to join what it characterizes as “the modern approach” is groundless.
Finally, the majority attempts to justify its disregard for well settled law by relying on Ketchup v. Howard, 247 Ga. App. 54 (543 SE2d 371) (2000). Of course, an opinion from the Court of Appeals is not binding on this Court. See Ga. Const, of 1983, Art. VI, Sec. V, Par. III. Moreover, Ketchup is materially distinguishable from the instant case.
Ketchup overruled Young v. Yarn, 136 Ga. App. 737 (222 SE2d 113) (1975), which interpreted part of the Georgia Medical Consent Law in such a way that it implicitly rejected the common law doctrine of informed consent. Ketchup v. Howard, supra at 54. The Court of Appeals’ decision to overrule Young v. Yarn was based, in large part, on three critical factors that are not present in the instant *710case. First, the Court of Appeals noted that all of the states except Georgia already recognized the informed consent doctrine. Ketchup v. Howard, supra. Second, the Court of Appeals noted that “the Supreme Court of Georgia has never held that the principle announced in Young v. Yarn was correct.” Ketchup v. Howard, supra at 64 (5). Finally, and perhaps most critically, the Court of Appeals noted that “[subsequent to the Young v. Yarn decision, the legislature enacted OCGA § 31-9-6.1, which requires medical professionals to provide information to their patients concerning the risks of some . . . medical procedures.” Ketchup v. Howard, supra at 61 (3).
In the instant case, unlike Ketchup, Georgia does not stand alone in its kidnapping law, but is already part of the great majority of jurisdictions. This Court has repeatedly approved and applied the well established meaning of asportation in our kidnapping statute, and the General Assembly has not enacted any legislation to change that accepted meaning, even ignoring a specific request from this Court that it do so. If anything, these critical differences between the instant case and Ketchup demonstrate precisely why the majority’s opinion in this case is an improper and unnecessary intrusion into the legislative arena.
2. The majority reverses Garza’s conviction for kidnapping Ms. Mendoza by applying its new four-part test. Because that test is not the rule in Georgia, it should not be applied in this case and reversal of the conviction on that basis is not authorized. Rather, the longstanding Georgia law on asportation, as accepted by the legislature, applies to this case. See Lyons v. State, supra. Under that law, it is clear that the asportation element of kidnapping is satisfied by Garza’s knocking the victim to the ground with a gun and then forcing her up and moving her to a chair. See Lenon v. State, supra; Norman v. State, 269 Ga. App. 219, 221 (1) (603 SE2d 737) (2004) (ordering victim to move at gunpoint sufficient asportation).
Although the distance of that movement may have been minimal, it was not merely incidental to some other criminal act, but was in fact designed to carry out better Garza’s criminal activity. See Lyons v. State, supra; Leppla v. State, 277 Ga. App. 804, 807 (1) (627 SE2d 794) (2006). Construed most strongly to support the verdict, the evidence shows that Garza’s criminal plan was to hold Ms. Mendoza and her children hostage until her cousin, whom Garza had previously dated, arrived at the home with her new boyfriend so he could kill the two of them. Accordingly, it is clear that the movement of Ms. Mendoza was not merely incidental to Garza’s assault on her, but instead materially facilitated the subsequent holding of the family hostage to further Garza’s plan to kill his former girlfriend and her boyfriend. Consequently, there is sufficient evidence of *711asportation and Garza’s conviction should be affirmed. See Lyons v. State, supra at 592 (1).
Decided November 3, 2008 — Reconsideration denied December 15, 2008. L. David Wolfe, Robert A. Susor, for appellant. Cecilia M. Cooper, District Attorney, Daniel P. Bibler, Assistant District Attorney, for appellee.3. In Division 3, the majority sua sponte reverses the judgment of conviction as to the kidnapping of J. M. In a footnote, the majority acknowledges “that Garza has not explicitly challenged the sufficiency of the evidence of asportation as to J. M. . . .” (Maj. Op. p. 704, fn. 7.) That acknowledgment, while correct, is misleading in that it implies that Garza may have somehow implicitly challenged the sufficiency of the evidence. However, the undisputed fact is that Garza has not raised any challenge to his conviction for kidnapping J. M., either in his filings in this Court or in the Court of Appeals. “It is not the function of this Court to advocate or advance positions not advanced by the parties.” Turner v. Flournoy, 277 Ga. 683, 686 (2) (594 SE2d 359) (2004). Here, the majority has improperly become an advocate for Garza by advancing a position on his behalf.
Moreover, even if Garza had challenged the sufficiency of the evidence of asportation as to J. M., such a challenge is wholly without merit. As the majority recounts, the evidence shows that Garza jumped onto the couch where J. M. had been sleeping, grabbed J. M.’s shirt, forced him into an adjoining bedroom where the two stayed for the next two to three hours while police attempted to negotiate J. M.’s release, and forced J. M. to walk with him down a hallway on more than one occasion. (Maj. Op. p. 704.) Under the well settled law of this state, such evidence was more than sufficient to establish asportation and to support Garza’s kidnapping conviction. See Lyons v. State, supra; Haynes v. State, supra. Accordingly, I must dissent from the majority’s improper reversal of a conviction not challenged by Garza.
I am authorized to state that Justice Hines and Justice Melton join in this dissent.